delhihc sanjay bhardwaj

7/27/2019 DelhiHC Sanjay Bhardwaj

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 9th August, 2010

Date of Order: 27th August, 2010

+Crl.M.C.No. 491/2009

27.08.2010

Sanjay Bhardwaj & Ors. ... Petitioner

Through: Dr. Naipal Singh, Advocate

Versus

The State & Anr. ... Respondents

Through: Mr. O.P.Saxena, APP for the State

With Mr. Gajraj Singh, SI

Mr. K.C.Jain, Adv. for the Complainant/Wife

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.2. To be referred to the reporter or not? Yes.3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

The present petition under Section 482 Cr.P.C. assails an order of interim maintenanceunder The Protection of Women from Domestic Violence Act, 2005 (in short Domestic

Violence Act) passed by the learned MM on 16th January, 2008 and confirmed by the

learned Additional Sessions Judge in appeal by order dated 29th February, 2008.

2. The petitioner was a Non-Resident Indian, working in Luanda, Angola in Africa asa Manager. He came to India taking leave from his job for marriage. Marriage between

the petitioner and respondent no.2/wife was settled through matrimonial advertisement.

The respondent wife was MA (English) and MBA. As per her bio-data sent before

marriage, she was doing job with a Multinational Company. The marriage between the


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parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got

registered on 25th May, 2007. The parties lived together for a limited period of 10 days

i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th June, 2007. Whilethe allegations of husband are that marriage failed within 3 weeks since the wife was

suffering from a chronic disease about which no information was given to him before

marriage and a fraud was played. The allegations made by wife were as usual of dowrydemand and harassment. Since the marriage did not succeed, the husband/petitioner

filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage as

null and void and the wife first filed an FIR against the husband under Section498A/406 IPC and then filed an application under Section 12 of Domestic Violence Act.

3. It is not relevant for the purpose of this petition to go into the details of allegationsand counter allegations made by each other. Suffice it to say that the learned MM passed

an order dated 16th January, 2008 directing husband to pay an interim maintenance of `

5000/- pm to the wife. He fixed this maintenance without considering the contentions

raised by the husband (as is stated in the order) that the husband lost his job in Angola(Africa) where he was working before marriage because his passport was seized by

police and he could not join his duties back. After marriage he remained in India, hewas not employed. In the appeal, learned Additional Session Judge noted the

contentions raised by the husband that he had become jobless because of the

circumstances as stated by him and he had no source of income, he was not even able tomaintain himself and had incurred loan, but observed that since the petitioner had earlier

worked abroad as Sales Manager and in view of the provisions of Domestic Violence

Act, he had the responsibility to maintain the wife and monetary relief was

necessarily to be provided to the aggrieved person i.e. wife. He observed that the wifewas not able to maintain herself therefore husband, who earned handsomely in past

while working abroad, was liable to pay 5000/- pm to the wife as fixed by the learned

MM.

4. A perusal of Domestic Violence Act shows that Domestic Violence Act does notcreate any additional right in favour of wife regarding maintenance. It only enables the

Magistrate to pass a maintenance order as per the rights available under existing laws.

While, the Act specifies the duties and functions of protection officer, police officer,

service providers, magistrate, medical facility providers and duties of Government, theAct is silent about the duties of husband or the duties of wife. Thus, maintenance can

be fixed by the Court under Domestic Violence Act only as per prevalent law regarding

providing of maintenance by husband to the wife. Under prevalent laws i.e. HinduAdoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is

supposed to maintain his un-earning spouse out of the income which he earns. No law

provides that a husband has to maintain a wife, living separately from him, irrespective ofthe fact whether he earns or not. Court cannot tell the husband that he should beg,

borrow or steal but give maintenance to the wife, more so when the husband and wife are

almost equally qualified and almost equally capable of earning and both of them claimed

to be gainfully employed before marriage. If the husband was BSc. and Masters in


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Marketing Management from Pondicherry University, the wife was MA (English) &

MBA. If the husband was working as a Manager abroad, the wife with MBA degree

was also working in an MNC in India. Under these circumstances, fixing of maintenanceby the Court without there being even a prima facie proof of the husband being employed

in India and with clear proof of the fact that the passport of the husband was seized, he

was not permitted to leave country, (the bail was given with a condition that he shall keepvisiting Investigating Officer as and when called) is contrary to law and not warranted

under provisions of Domestic Violence Act.

5. We are living in an era of equality of s*xes. The Constitution provides equal

treatment to be given irrespective of s*x, caste and creed. An unemployed husband, who

is holding an MBA degree, cannot be treated differently to an unemployed wife, who isalso holding an MBA degree. Since both are on equal footing one cannot be asked to

maintain other unless one is employed and other is not employed. As far as dependency

on parents is concerned, I consider that once a person is grown up, educated he

cannot be asked to beg and borrow from the parents and maintain wife. The parentshad done their duty of educating them and now they cannot be burdened to maintain

husband and wife as both are grown up and must take care of themselves.

6. It must be remembered that there is no legal presumption that behind every failedmarriage there is either dowry demand or domestic violence. Marriages do fail for

various other reasons. The difficulty is that real causes of failure of marriage are rarely

admitted in Courts. Truth and honesty is becoming a rare commodity, in marriages and

in averments made before the Courts.

7. I therefore find that the order dated 16th January, 2008 passed by the learned MMand order dated 29th February, 2008 passed by the learned Additional Sessions Judge

fixing maintenance without there being any prima facie proof of the husband being

employed are not tenable under DomesticViolence Act. The petition is allowed. The orders passed by Metropolitan Magistrate

and learned Additional Sessions Judge are hereby set aside.

August 27, 2010 SHIV NARAYAN DHINGRA, J.

delhihc sanjay bhardwaj

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